Case Note & Summary
The petitioner-wife filed a divorce petition (P.A. No.746 of 2011) seeking dissolution of marriage. She later realized that she had not claimed maintenance for the child, education expenses, permanent alimony, and maintenance for herself due to her previous advocate's failure to advise her about these reliefs. After engaging a new advocate, she promptly filed an application under Order 6 Rule 17 CPC to amend the petition by adding paragraphs 14-A and 14-B and amending the prayer clause. The Family Court rejected the application on the ground that the trial had commenced and the petitioner had not shown due diligence, as she was aware of these claims from her interim maintenance application. The High Court allowed the writ petition, setting aside the Family Court's order. It held that the petitioner's lack of knowledge due to her previous counsel's omission constituted sufficient cause and due diligence. The court noted that the amendment was sought to avoid multiplicity of proceedings and that the respondent could be compensated by costs. The court directed the Family Court to allow the amendment subject to payment of costs of Rs. 5,000 to the respondent.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Due Diligence - The petitioner-wife sought amendment to add claims for maintenance, education expenses, and permanent alimony in her divorce petition after trial had commenced. The Family Court rejected the application on ground of lack of due diligence. The High Court held that the petitioner's lack of knowledge due to previous counsel's failure to advise her constituted sufficient cause and due diligence, as she filed the amendment promptly upon learning of the remedy. The amendment was necessary to avoid multiplicity of proceedings. (Paras 3-8) B) Family Law - Maintenance and Alimony - Avoidance of Multiplicity - The court emphasized that allowing the amendment would prevent the need for separate proceedings for maintenance and alimony, which is in the interest of justice and judicial economy. (Para 8)
Issue of Consideration
Whether an application for amendment of pleadings under Order 6 Rule 17 CPC should be allowed after commencement of trial when the party claims lack of advice from previous counsel.
Final Decision
Writ petition allowed. Impugned order dated 04/01/2016 set aside. Family Court directed to allow the amendment application subject to payment of costs of Rs. 5,000 to the respondent.
Law Points
- Amendment of pleadings
- Order 6 Rule 17 CPC
- due diligence
- avoidance of multiplicity of proceedings
- liberal approach to amendments
